A mediation panel created by an act of Parliament has been in
existence for 12 years and has never heard a single case.

The terms of Canada's largest and most internationally
heralded land claim agreement are protected by Section 35 of
Canada's Constitution but the separate contract that governs how
the agreement will be funded is not.

These are just two of the items highlighted in a report
commissioned by the federal government that was delivered on Aug. 31.
Although it is not yet a public document, Windspeaker obtained a copy of
Thomas R. Berger's report to Indian Affairs Minister Andy Scott on
how best to break the stalemate in talks aimed at renewing the 1993
Nunavut Land Claims Agreement (NLCA). Now two years past July 9, 2003,
the date when the 10-year initial term of the NLCA expired, the parties
have been unable to agree on the terms or the process of renewal.

Berger was appointed as conciliator for the NLCA implementation
contract negotiations on May 26 and got right to work, spending June and
July meeting with all the parties in both Ottawa and Nunavut.

The former judge was asked to issue his final report within 90 days
of being retained or to file an interim report by that time. He filed an
interim report only because one sticky area will be the subject of a
separate report to be issued sometime in the next few months. That
report will deal with Section 23 of the NLCA, which calls for
representative employment levels of Inuit people in the public service.
The commitment made is far from being satisfied, with Inuit employment
numbers languishing far below half the targeted number in both the
federal and Nunavut civil service.

Berger was retained as a "recognized problem solver who could
make a neutral assessment of the issues and provide the parties with
recommendations."

All three parties to the agreement--the federal government, the
territorial government of Nunavut and Nunavut Tunngavik Inc. (NTI), the
corporation that oversees the NLCA--hailed Berger's appointment
when it was announced in May.

Stating early that he based his analysis on three "underlying
considerations"--the status of the NLCA as a constitutional
document, the principle that the honor of the Crown must be observed in
all dealings with the Inuit, and the contents of the actual
agreement--Berger said he detected one central problem that needed to be
addressed.

"It appears that the parties--Nunavut and NTI on one side,
Canada (represented by Indian and Northern Affairs) on the other--lack
confidence in one another's good faith. They do not have the sense
that they are working together towards common goals," he wrote.
"They cannot agree on what issues fairly arise under the NLCA, and
they cannot agree on what is properly considered
'implementation.' NTI seeks to cloak as many issues as
possible in the language of contractual obligation; Canada wishes to
limit the scope of its legal obligations and to discuss broader issues
as questions of policy having nothing to do with the land claim."

Berget said both sides will have to modify their approaches if
progress is to be made.

Later in the report, Berger quoted criticisms leveled by the
auditor general in 2003 that Indian and Northern Affairs Canada seems
focused on fulfilling the letter of land claim implementation plans, but
not the spirit of those plans.

"Officials may believe that they have met their obligations,
but in fact they have not worked to support the full intent of the land
claims agreements," wrote the auditor general.

"I agree," wrote Berger.

Just because a deal has been finalized, he said, does not mean that
Canada's obligation to uphold the honor of the Crown has ended even
if the details are spelled out in a contract rather than a piece of
legislation with the power of the Constitution behind it.

"Treaty making and treaty implementation are distinct but not
strictly isolated concepts," he wrote. "I am of the view that
the implementation process must be approached broadly with a view to
achieving the purposes of the NLCA."

Clearly aware of his status as a neutral observer, Berger was
careful to write in diplomatic and non-critical language whenever
possible. But a couple of situations he discovered attracted blunter
language.

He noted that certain areas of the agreement were phrased in an
inexact fashion (such as the "fair and reasonable
remuneration" that the NLCA stated would be paid to members of the
six boards created to administer the agreement).

"So what do such words really settle? The obligation is
expressed so generally as to be exceedingly difficult to enforce. So
long as some funding is provided, arguments will be premised on the
interpretation of the language and it is subject to almost impossibly
wide interpretation," he wrote. "Drafters employ such phrases
to describe obligations precisely because the parties cannot agree on
the specifics; it is a mistake to think that, come implementation,
consensus among the parties as to what the text means--legally
speaking--will be any more advanced."

Quibbling over the meaning of terms would not lead anywhere, he
added.

"In the end, successful implementation depends far more on the
goodwill of the parties and the honor of the Crown than on any formal
requirements derived from the NCLA or the implementation contract,"
he wrote.

Berger reserved his harshest criticism for a tactic that has been
employed by the Crown almost from the moment the NLCA took effect.

Article 38 of the NLCA created the Nunavut Arbitration Board (NAB)
to resolve disputes "arising in the interpretation, application and
implementation of the agreement."

The legislation calls for disputes between an Inuit organization
and government to be decided by the NAB but, Berger wrote, "As of
today, no case has come before the board owing to Canada's refusal
to agree to arbitrate when such requests have been made."

Later he explained that "Canada has thus far refused in every
case to agree to arbitration on the ground that it would interfere with
Parliament's exclusive authority regarding appropriation of
money."

Berger took aim at Canada's position, saying that Parliament
passed the NLCA, including Article 38, with eyes wide open and that
makes it the law of the land.

"It seems disingenuous for Canada to argue that the executive
branch can take a position in defense of Parliament's prerogatives
when Parliament itself has passed a measure that it is prepared to
submit matters in the very broad category described by Article 38 to
arbitration," he wrote. "To the extent that Canada has refused
its consent on the ground that to agree to arbitrate would usurp Parliament's prerogatives, I think it has acted misguidedly."

Thomas Berger recommended that the parties agree in advance to
refer a matter to non-binding mediation if they can't agree to
arbitration.

"No party could act unreasonably, content in the knowledge
that it need never submit the question to an impartial third
party," he wrote.

Berger's report in many ways vindicates the complaints set out
by the Land Claims Agreement Coalition in a letter sent to Prime
Minister Paul Martin in March 2004. The group of seven Aboriginal
organizations that have signed comprehensive claim agreements told the
prime minister that little happened after the agreements were finalized.

Berger said he heard the same complaint on a number of occasions
from all parties, including from federal officials.

"They believe that a malaise set in during the implementation
process after the 1999 miracle of the creation of Nunavut," Berger
wrote. "More than once, they summarized Canada's attitude with
a gesture-dusting off their hands--and a word--'Next!'"

But Berger also said that most of the people involved, on all
sides, were determined that Nunavut should succeed. "They are not
fatigued, though they are certainly frustrated. They want to get on with
the job," he wrote.

By Paul Barnsley

Windspeaker Staff Writer

VANCOUVER

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